BLG15 v Minister for Immigration

[2018] FCCA 2264

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLG15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2264

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: BLG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2008 of 2015

Judgment of: Judge Cameron

Hearing date: 3 July 2018

Date of Last Submission: 3 July 2018

Delivered at: Sydney

Delivered on: 3 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M. Glavac of Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2008 of 2015

BLG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Lebanon who arrived in Australia on 18 June 2013. On 2 September 2013 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Lebanon. On 9 July 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. The applicant’s claims for protection were made in his application form, at an interview with the delegate on 28 April 2014, at a Tribunal hearing on 3 June 2015 and in written submissions dated 12 June 2015.  As summarised by the Minister in his written submissions, the applicant relevantly made the following claims:

   3.The Applicant’s claim for a protection visa was founded on the consequences of a purported [Shia/Sunni Muslim] relationship.  In his application form, the Applicant claimed that he entered into a “Shia temporary marriage temporary agreement” with a girl from a Sunni Wahhabi family.  He claimed that his partner’s family belonged to “Jamaa Islamie”, which is an extremist Salafist group.  He claimed that his partner’s family found out about the relationship and are now looking for him with the intention of seriously harming him.  He further claimed that he could not return to his home village without passing through areas of Lebanon where many Sunni Wahhabi families reside. In support of his application, the Applicant provided correspondence from a medical practitioner in relation to his mental health.

   4.… Following the [Tribunal] hearing on 12 June 2015, the Applicant’s representative made a submission in relation to the credibility of the Applicant’s claims and the feasibility of internal relocation within Lebanon.  The representative also expressed concerns about the quality of translation and interpretation at the hearing and submitted several newspaper articles which he claimed assisted the Applicant’s case. (References omitted)

2. I adopt that summary of the applicant’s claims.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:

   6.The Tribunal noted that the Applicant gave evidence which was at times vague and deficient in detail and also that there were some discrepancies between his evidence at the Departmental interview and his oral evidence to the Tribunal. However, it did not consider that the deficiencies in the Applicant’s evidence were “so significant [as] to fundamentally undermine his credibility”.  It accepted that some of the facts alleged by the Applicant were true.  Namely, it accepted the existence of the relationship between the Applicant and the Sunni girl called [M].  It accepted that the Applicant entered into a temporary marriage contract with [M] because he did not wish to engage in an illegitimate physical relationship with her and that, in February 2013, [M’s] family became aware of the relationship.

   7.The Tribunal was not, however, satisfied that members of [M’s] family or anyone else had any interest in pursuing or harming the Applicant.  The Tribunal found that the Applicant’s fear of harm was based on what was conveyed to him by [M] about her family members, in particular her uncle, and the Applicant’s own assumptions.  These threats were not credible and based on conjecture. The Tribunal further noted that [M’s] family made no attempt to harm the Applicant between February 2013, when they found out about the relationship, and June 2013, when the Applicant left Lebanon for Australia, despite having the opportunity to do so.

   8.The Tribunal also had regard to the representative’s complaint regarding the standard of interpreting at the hearing.  It noted that the interpreter was NAATI qualified and highly experienced in the Arabic and English languages. It also noted that the Tribunal is “proficient in the Arabic language and did not, at any point, form the impression that the standard of the interpreting of the hearing had prevented the Applicant from communicating his claims clearly or without difficulty.”  The Tribunal also referred to the specific complaint made by the representative namely that a word which could have the meaning of both “week” and “Friday” was misinterpreted by the interpreter.  This was rejected by the Tribunal, which also noted that “this particular aspect of the Applicant’s evidence did not cause concern for the Tribunal and did not form the basis of any adverse findings.” (References omitted)

PROCEEDINGS IN THIS COURT

1. In the application commencing these proceedings the applicant alleged:

   1.The Refugee Review Tribunal misunderstood my claim as a result of difficulties with the interpreter.

   2.The Member of the Tribunal refused my case as he was affected by the misinterpretation at the hand of the interpreter.

   3.I reserve my right to lodge a transcript of the hearing to demonstrate how the interpreter affected the mind of the Member of the Tribunal.

2. In the discharge of his obligations as a model litigant, the Minister also raised the possibility that a breach of s.425 of the Act had occurred. Relevantly, that section provides:

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)  Subsection (1) does not apply if:

   (a)  the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)  subsection 424C(1) or (2) applies to the applicant.

   (3)  If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

Inadequate translation services

1. The applicant has adduced no evidence to support the express allegation that interpreter services at the Tribunal hearing were inadequate or the implied allegation that he and the presiding Tribunal member had been unable to communicate sufficiently well with the consequence that he had not been able to put his case to the Tribunal in a way which discharged the Tribunal’s implicit obligation to give him a real and meaningful hearing.  In the absence of such evidence, the allegation cannot succeed.

2. An additional reason why the allegation must fail is to be found in the Tribunal’s decision record. The Tribunal member disclosed in the decision record an effective knowledge of the language spoken by the applicant, in this case Arabic.  The Tribunal said in para.23:

   Concerning the applicant’s representative’s submissions in relation to the standard of interpreting at the hearing, the applicant was assisted by a NAATI qualified and highly experienced interpreter in the Arabic and English languages. As acknowledged in his submission, the representative has limited Arabic language skills. The Tribunal, on the other hand, is proficient in the Arabic language and did not, at any point, form the impression that the standard of interpreting at the hearing had prevented the applicant from communicating his claims clearly or without difficulty. The only example of misinterpretation the applicant’s representative could offer was the one he referred to in his submission. In relation to that particular example, relying on its own language skills and the context of the applicant’s evidence, the Tribunal had no difficulty correctly apprehending what was being conveyed by the applicant. Moreover, this particular aspect of the applicant’s evidence did not cause concern for the Tribunal and did not form the basis of any adverse findings. The Tribunal is not satisfied that the standard of interpretation at the hearing was so inadequate that the applicant was effectively prevented from giving evidence. Nor is it satisfied that interpreting errors have formed the basis of any adverse conclusions drawn by the Tribunal in relation to the applicant’s claims.

3. In those circumstances, I must conclude that the applicant was not denied the real and meaningful hearing implicitly guaranteed by s.425 of the Act, by reason of inadequate translation services at the Tribunal hearing.

Failure to identify an issue

1. In his address to the Court, the Minister noted that the delegate had rejected the applicant’s claim to have participated in an Islamic temporary marriage and had for that reason rejected his claims to fear harm from the family of his temporary spouse, which was said to have arisen out of that relationship.  The Minister pointed out that the Tribunal, on the other hand, had accepted that the temporary marriage had taken place but rejected the alleged related fears of harm for other reasons.

2. That the Tribunal considered those claims to be in issue could not have been misunderstood by the applicant.  As recorded in para.21 of the Tribunal’s reasons, the relevant issue was put to the applicant when the Tribunal said that it did not appear to it that anybody had been interested in harming him.  It is to be noted that the applicant went on to address that issue.

3. In such circumstances, I do not find that a breach of s.425 of the Act occurred.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date:  23 August 2018